Your employee has a fragrance allergy. What does the ADA require you to do?

This can be a really difficult situation. Just ask a local Pennsylvania employer.

In Brady v. United Refrigeration, Inc. (opinion here), the plaintiff suffered from heightened sensitivity to perfumes, fragrant chemicals, and lotions. After she told her employer, the company attempted a number of accommodations:

Purchased a portable air cleaner for use at the plaintiff’s work station

Purchased a second portable air cleaner for the plaintiff after she broke the first one

Distributed several times a notice to all employees not to wear perfume, cologne or aftershave to the office

Purchased face masks for the plaintiff (which she later refused to wear)

Relocated an employee who had to wear medically-prescribed skin lotion

Cleaned a wall panel that plaintiff claimed had fragrances on it

Cleaned the rug around the plaintiff’s workstation

Cleaned the rug around the plaintiff’s work station.

Still, the plaintiff could not attend work regularly — assume that regular attendance was an essential job function. And, ultimately, the company laid off the plaintiff because of her inconsistent attendance. So, the plaintiff sued, claiming, among other things, disability discrimination.

All those accommodations, and still, disability discrimination? Maybe.

To prove disability discrimination, a plaintiff needs to establish, among other things, that she has a disability and that she can perform the job with or without reasonable accommodation. Here, the disability is a no-brainer, especially in light of medical evidence that the plaintiff provided her employer.

So, how is someone with an unpredictable work schedule qualified to do the job, especially when regular attendance is an essential job function? In this case, the Court determined that the employer, with all of those steps taken above to accommodate the plaintiff, may not have acted reasonably. Yep:

Here, Plaintiffs’ circumstances do not involve unexplained absences; rather, Plaintiffs’ condition is triggered by stimuli that are at least somewhat within Defendants’ power to control. If Defendants’ own no fragrance policies are not ￼￼being sufficiently administered or enforced, as Plaintiff alleges, Defendants may have to accept that Plaintiff must take some time away from that environment.

Did the employer get a raw deal? Probably.

Yowch! Tough outcome here for the employer.

First, depending on the size of the business, a fragrance-free workplace may be entirely impractical, given the number of people (employees and visitors) and other scent-producing products (cleaners, air fresheners, etc.) that could impact an individual who is sensitive to smells. Second, the employer offered a face mask, which the Third Circuit (here) has previously deemed reasonable. The plaintiff even agreed to the mask, but then relented. So, even if temporary leave, such as intermittent FMLA, is reasonable, the employee does not get to pick and choose which accommodation to take, insofar as there are other reasonable options (here, the mask).

How to address similar requests in your workplace.

Requests for scent-free workplace can be difficult to accommodate. However, before responding with an automatic no, it is important for employers to entertain such a request in good faith and have an interactive dialogue to determine what the employer can reasonably do for the employee without creating an undue burden. Ask the employee for medical documentation and support for whatever accommodation she requests. Hopefully, there is a middle ground — maybe, telecommuting on occasion — that will allow the employee to perform the essential functions of the job.

But, if there is no reasonable accommodation and the employee cannot perform the essential functions of the job, then she is not qualified under the ADA, and you can end her employment.

CONTRIBUTOR:

Eric B. Meyer

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? If you want a nerdy employment-lawyer brain to help you solve HR-compliance issues proactively before the action sequence, as a Partner of a national law firm, FisherBroyles, LLP, I’m here to help. I'm not only an EEOC-approved trainer, I offer day-to-day employment counseling, workplace audits and investigations, and other prophylactic measures to keep your workplace working while you focus on running your business. And for those employers in the midst of conflict, I bring all of my know-how to bear as your zealous advocate. I’m a trial-tested, experienced litigator that has represented companies of all sizes in a veritable alphabet soup of employment law claims, such as the ADA, ADEA, CEPA, FMLA, FLSA, NJLAD, PHRA, Title VII, and USERRA. I also help clients litigate disputes involving restrictive covenants such as non-competition and non-solicitation agreements, as well as conflicts over use of trade secrets and other confidential information. For more about me, my practice, and my firm, click on my full bio.